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United States District Court, E.D. CaliforniaMar 2, 2007
No. CIV S-04-2417 DFL JFM P. (E.D. Cal. Mar. 2, 2007)

No. CIV S-04-2417 DFL JFM P.

March 2, 2007


Petitioner, a state prisoner proceeding pro se, has filed this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.

On June 14, 2006, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty days. Petitioner has filed objections to the findings and recommendations.

Petitioner continues to argue the substance of his underlying habeas petition; however, he has failed to meet the procedural requirements of Rhines v. Weber, 544 U.S. 269 (2005). This court cannot reach the merits of petitioner's habeas petition until a fully exhausted petition is before the court, Rose v. Lundy, 455 U.S. 509, 510 (1982), and all briefing, including an answer from respondent, is completed.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed June 14, 2006, are adopted in part;

2. Petitioner's May 1, 2006 motion for stay and abeyance is denied;

3. Petitioner's May 30, 2006 writ of mandamus, construed as a request for reconsideration is denied; and

4. Within twenty days from the date of any order of the district court adopting these findings and recommendations, petitioner shall file a document signed by petitioner stating unequivocally which option petitioner chooses. Failure to timely comply with that order will result in a recommendation that petitioner's unexhausted claims have been abandoned and the court will proceed solely on petitioner's exhausted claims.